Judge J. Harvie Wilkinson III (4th Cir.) argues in Cosmic Constitutional Theory: Why Americans Are Losing Their Inaliable Right to Self-Governance that the proliferation of constitutional theories in recent decades is undermining judicial restraint, handing judges the keys to our democracy, and ultimately leading to the loss of self-governance. Judge Wilkinson's point is this: comprehensive constitutional theories (of constitutional interpretation, of judging) empower judges, even when they're designed not to, and thus undermine a necessary feature of our government, judicial restraint. Judicial empowerment comes at a cost to the democratic branches, and thus to self-governance itself.

No one has stepped back and asked exactly where these theoretical proliferations of all persuasions are taking us. The answer to that question will become clear: the theories are taking us down the road to judicial hegemony where the self-governance at the heart of our political order cannot thrive.

Indeed, the theories have given rise to nothing less than competing schools of liberal and conservative judicial activism, schools that have little in common other than a desire to seek theoretical cover for prescribed and often partisan results. In short, cosmic constitutional theory has done real damage to the rule of law, the role of courts in our society, and the ideals of restraint that the greatest judges in our country once embraced. But the worse damage of all has been to democracy itself, which theory has emboldened judges to displace.

And at another point:

Indeed, I fear that democratic liberty will more and more become the victim of cosmic theory's triumphal rise. The grand quest of the theorists has left restraint by the wayside and placed the inalienable right of Americans to self-governance at unprecedented risk. The increasing willingness of leading thinkers in the law to claim that their theory of the Constitution provides the answers has made citizens all the more willing to look to the courts to resolve the great social controversies of our time. In turn, the courts' eagerness to resolve such debates has cast them in a decidedly political light, making judicial selections and confirmation battles all the more disputatious.

But Judge Wilkinson only weakly argues for judicial restraint, almost taking the point for granted. And it's hard to see where he draws the line between a properly restrained court and an inappropriately activist one. Consider this passage, distinguishing between "major activist decisions" and certain contemporary cases:

Major activist decisions of the Warren Court . . . have rightly stood the test of time, and that success doubtless strengthens the belief of today's interventionists that tomorrow may smile on their bolder efforts too.

They are wrong. Decisions like Brown, Gideon, and Miranda represent success stories because they vindicated foundational principles essential to the functioning of our nation. But I doubt there are now Browns and Gideons waiting to be born. One can debate the precise reach of eminent domain or regulatory takings or the value of same-sex marriage or the utility of firearms regulation without believing that our Constitution is bereft of meaning if one's own beliefs are not embodied there.

Judge Wilkinson's solution is not a new theory. He declines to advance one. Instead, he argues for a kind of judicial restraint and deference to the political branches that he says is best represented by the work of Justices Holmes, Brandeis, Frankfurter, Harlan, and Powell. According to Judge Wilkinson, "Their examples show that one can be a great justice without expounding a grand theory."

Prof. Juan Perea (Loyola Chicago and visiting Lee Chair at John Marshall) argues in his excellent piece Race and Constitutional Law Casebooks: Recognizing the Proslavery Constitution that con law profs, unlike historians, do a bad job with slavery. In particular, he says that law profs do a bad job even recognizing the pro-slavery origins of our Constitution, much less teaching them. He says that this neglect and dishonesty about so central a part of our Constitution prevents us all from critically examining how the pro-slavery nature of our Constitution influences contemporary doctrine and debates. And, importantly, he tells us what we can do about it.

Perea's piece, published in the Michigan Law Review, starts as a book review of George William Van Cleve's A Slaveholders' Union: Slavery, Politics, and the Constitution in the Early American Republic. But Perea moves quickly into an examination of how--or even whether--contemporary constitutional law instruction addresses anything at all about slavery--the issue that Van Cleve shows played a defining role in our constitutional beginnings. Perea surveys some of the top casebooks and concludes that they barely touch the issue. Even when they do, they pay only scant attention to it, apparently assuming either that it wasn't really that important to the framing and ratification, or that that the Reconstruction Amendments solved the problem. This lack of attention to so critical an issue is particularly vexing in a field that otherwise takes history and tradition so seriously.

Perea argues that the pro-slavery Constitution is reflected in structural racism, Court-crafted doctrine (perhaps most especially the Court's demand for proof of intent to show an equal protection violation, although there are dozens of doctrinal examples), the intentional use of race-neutral language in the law to produce a racially targeted harm, and the consistent sacrifice of black equality rights for the sake of political union. We may teach these things, and we may even teach them critically. But we mostly don't teach them as what they are: outgrowths of a pro-slavery foundational document.

Perea has some ideas about what to do about this. In short: say more. Casebooks should devote more attention to the pro-slavery Constitution, and to tie it to contemporary doctrine. Teachers should say more--much more--about it and teach it as part of our history, tradition, and doctrine. Until the casebooks catch up, Perea offers some suggestions and resources for integrating slavery into their classes.

The easiest way may just be this: Assign our students Perea's article.

"On Thanksgiving Day, individuals from all walks of life come together to
celebrate this most American tradition, grateful for the blessings of
family, community, and country. Let us spend this day by lifting up
those we love, mindful of the grace bestowed upon us by God and by all
who have made our lives richer with their presence."

The President has been criticized in the past for not including sufficient mentions of "God" in conjunction with Thanksgiving.

When President George Washington marked our democracy's first
Thanksgiving, he prayed to our Creator for peace, union, and plenty
through the trials that would surely come. And when our Nation was torn
by bitterness and civil war, President Abraham Lincoln reminded us that
we were, at heart, one Nation, sharing a bond as Americans that could
bend but would not break.

The current President does not mention FDR, the president responsible for Thanksgiving being the second to last Thursday - - - rather than the last - - - for economic reasons. According to the National Archives:

In 1939, however, the last Thursday in November fell on the last day of
the month. Concerned that the shortened Christmas shopping season might
dampen the economic recovery, President Franklin D. Roosevelt issued a
Presidential Proclamation moving Thanksgiving to the second to last
Thursday of November. As a result of the proclamation, 32 states issued
similar proclamations while 16 states refused to accept the change and
proclaimed Thanksgiving to be the last Thursday in November. For two
years two days were celebrated as Thanksgiving - the President and part
of the nation celebrated it on the second to last Thursday in November,
while the rest of the country celebrated it the following week.

Meanwhile, there is controversy about so-called "blue laws" banning the opening of stores on Thanksgiving day itself. Recall that the United States Supreme Court, in an opinion by Chief Justice Earl Warren, rejected the First Amendment challenges and upheld a criminal conviction under a Sunday blue law in McGowan v. Maryland, 366 U.S. 420 (1961).

Just when it seems as if the "takings clause revolution" is over, it re-emerges. This time, the property is not a "little pink house," but raisins.

The United States Supreme Court has granted certiorari in Horne v. USDA. As we discussed last year, the Ninth Circuit upheld the constitutionality of a USDA regulatory scheme regarding raisins against a takings clause challenge. The central requirement at
issue mandates that a certain percentage of a raisins be put in
"reserve" each year - - - this fluctuates yearly and by controlling
raisins on the market is a means of indirectly controlling prices. The Hornes argued that "the requirement that they contribute a specified percentage of their
annual raisin crop to the government-controlled reserve pool constitutes
an uncompensated per se taking in violation of the Fifth Amendment."

With at least one person arguing that any recent surfeit in law graduates is due to law schools' "exploitation of the career aspirations of women in particular," Professor Karen Tani's article, Portia's Deal, published in Chicago-Kent Law Review and available in draft on ssrn, reminds us that women's aspirations for legal careers is not a recent phenomenon.

Tani (pictured) argues that the New Deal "offered
important opportunities to women lawyers at a time when they were just
beginning to graduate from law school in significant numbers." Tani focuses on three women: Sue Shelton White, Marie Remington Wing, and Bernice Lotwin Bernstein. In her compelling article, she discusses their careers as well as the constitutional trenches of the New Deal.

Tani concludes:

According to conventional narratives, these women are not significant. They did not stand up before the Supreme Court and defend New Deal
legislation. They did not become legislators, judges, or famous academics. Yet,
their stories have much to offer us. White, the fiery suffragist who died too
young, encourages us to consider the difference that gender made to the high‐stakes
interpretive and administrative work of New Deal lawyers. White’s biological sex did not dictate the style or quality of her lawyering, but there are hints that her path to the New Deal—a path that had everything to do with gender—affected the way that she interacted with colleagues and analyzed legal questions. Wing, the “hell‐raiser” from Cleveland, inspires us to think more deeply about power and place. Regional outposts of the federal government were not as desirable to young, male graduates of Harvard Law School, and yet, as Wing discovered, they were the sites of political influence and vital legal work. Bernstein is perhaps the most
intriguing case study, since in pedigree and placement she was the female
equivalent of one of Felix Frankfurter’s “Happy Hotdogs.” Unlike most of her
male counterparts, who used the New Deal as a launching pad for celebrated
careers in academia, private practice, and politics, Bernstein remained an
administrative lawyer for decades. We need more information about the costs and
benefits of this career trajectory, both for the individual and for society.

Together, the lives of all three women provoke one final
question. In the area of social welfare and elsewhere, much law‐making happens neither at
the top, with Congress and the appellate courts, nor at the bottom, with the
people. It happens somewhere in between, with ground‐level decision‐makers
and mid‐level
bureaucrats. Who occupied that level of decision‐making in 1935? Who
occupies it now? Much of the content of today’s law is their doing.

Tani's analysis is certainly worth considering when we talk, even implicitly, about who is entitled to become an attorney.

It's refreshing to pick up a book that explores a topic like constitutional originalism with vim and vigor and a plain-spoken, jargon-less approach that appeals to--indeed invites--readers who are outside the technical academic debates. We ought to have more like this. If we did, we might have more meaningful public discussions about the virtues and vices of originalism, living constitutionalism, constitutional fidelity, or any other method of constitutional interpretation or construction--and why they matter.

The downside, of course, is that plain-spoken-ness can sometimes come at a cost to nuance, balance, completeness, and even honesty. This may be especially true when discussing constitutional interpretation and construction, an area so rife with nuance and indeterminacies. The danger (and perhaps an opportunity, for advocates of any particular approach) is in over-simplifying.

Adam Freedman's The Naked Constitution sets a standard for plain-spokenness and accessibility in the area of constitutional originalism. It's an extraordinarily well written--indeed, fun-to-read--page-turner that romps through the Constitution and the courts' treatment of it and delivers a plain-spoken argument for Freedman's brand of original-meaning originalism. (Just to be clear: Freedman argues that original meaning supports a narrow, strict reading of the text.)

But while Freedman's gift for clear, entertaining writing has all the potential to bring a serious constitutional debate to a broader public, it also trades on nuance, balance, and completeness in the text, history, and precedent. And because of the book's (unnecessary) partisanship, it's likely only to reinforce the ideas of Freedman's supporters, to alienate his detractors, and to divide readers. I don't think it'll do much persuading or advancing-of-the-originalism-debate on either side.

And that's OK. This book seems designed first as a political argument, only next as a constitutional one. It's red meat for conservatives, and it'll surely rile progressives. If you're looking for a lively, readable volume that will fuel your constitutional politics (whatever they are) this is for you. And the book's sheer breadth ensures that you're likely to learn something about constitutional originalism (or anti-living-constitutionalism), even if the book doesn't always tell the whole story.

Freedman takes aim at the usual suspects--a Congress bent on legislating ultra vires, a unitary executive constrained by independent agencies, unenumerated fundamental rights, a wall of separation between church and state, lack of priority to the rights of gun owners and property owners, an Eighth Amendment run amok, and a vacant Tenth Amendment. According to Freedman, these all share this common denominator: an activist judiciary that is unfaithful to the original meaning of the text.

But these usual suspects all share another common denominator: they're the bread-and-butter bogeymen of the new-style political conservatives. Freedman would say as much. Indeed, a good part of his book is devoted to showing that "liberals"--everyone from the ACLU, to the Ninth Circuit, to President Obama--support these constitutional over-reaches. That's too bad. It's distracting and divisive. And it's unnecessary.

The book's partisanship is unnecessary because there's an apolitical case to be made for original-meaning originalism (and against an unfettered living constitutionalism)--one that can use the same lively and accessible approach that Freedman uses here. But that case also has to be fair and balanced; it has to look at the complete original meaning, to acknowledge originalism's shortcomings, and to lodge originalist critiques of living constitutionalists honestly.

Freedman's book sometimes moves in this direction. It's especially strong when it identifies apparent absurdities in the doctrine, for example when it takes on the Court's gloss on the religion clauses: "In the contradictory world of the First Amendment, it is ridiculously easy to 'establish' a religion, but it's almost impossible to burden 'free exercise.'" That's overstated, but it raises a point.

But the book also too often sets up straws, picks at low-hanging fruit, and neglects the full original-meaning picture. As an example of the last, consider the book's treatment of federalism and the Tenth Amendment: the book neglects the bulk of the textual and original-meaning evidence supporting a robust federal government (over the states); and it turns the scant evidence of original meaning that it considers on its head. (See, for example, the discussion of the omission of the word "expressly" from the Tenth Amendment, on pages 290 to 291, arguing that the omission reinforces a limited federal government, and that CJ Marshall recognized this in McCulloch.) It also devalues the original meaning of the federalism amendments--thirteen through seventeen, and others.

In short, The Naked Constitution is more a political argument than a constitutional one--and consciously so. It's a terrifically fun read, but one that is likely only to solidfy positions, not to propel the public debate about originalism.

The contraception provision requirement of the ACA continues to foment litigation. However, unlike last week's decision by a federal district judge granting the preliminary injunction in favor of Tyndale House Publishers, a small Christian publishing house, yesterday a federal district judge denied a preliminary injunction sought by Hobby Lobby, a privately held corporation operating 514 arts and crafts stores in 41 states regarding the so-called "morning after" or "Plan B" contraceptive pill.

In a 28 page opinion, Judge Joe Heaton of the Western District of Oklahoma, denied Hobby Lobby's claims, as well as the claims by Mardel, a Christian supply and bookstore chain; both corporations are owned by the Green family through a management trust. Interestingly, much of the judge's analysis revolves around the identity of the plaintiffs as it relates to whether their First Amendment and RFRA are being violated.

Denying the preliminary injunction, Judge Heaton concluded:

Plaintiffs have not demonstrated a probability of success on their First Amendment
claims. Hobby Lobby and Mardel, secular, for- profit corporations, do not have free exercise
rights. The Greens do have such rights, but are unlikely to prevail as to their constitutional
claims because the preventive care coverage regulations they challenge are neutral laws of
general applicability which are rationally related to a legitimate governmental objective.

Plaintiffs also have failed to demonstrate a probability of success on their Religious
Freedom Restoration Act claims. Hobby Lobby and Mardel are not “persons” for purposes
of the RFRA and the Greens have not established that compliance with the preventive care
coverage regulations would “substantially burden” their religious exercise, as the term
“substantially burdened” is used in the statute. Therefore, plaintiffs have not met their prima
facie burden under RFRA and have not demonstrated a probability of success as to their
RFRA claims.

The applicability of free exercise rights and RFRA rights to corporations is resoundingly rejected by Judge Heaton. His analysis as to the persons involved does, in part, depend upon their attentuated relationship to the entities subjected to the ACA requirements.

In an excerpt published in Slate this morning, from his e-book, Camp Justice, journalist Mattathias Schwartz writes compellingly of covering the ongoing trial United States v. Khalid Sheikh Mohammed, et al. We most recently discussed Khalid Sheikh Mohammed (KSM), the so-called "mastermind" of 9-11 and the onlgoing legal proceedings, when KSM was arraigned.

Recall that whether or not KSM would have a trial - - - and where - - - were hotly contested matters. Now, Schwartz states that although the KSM trial at Guantanamo is an “open” and “public” proceeding [his quotes], accepting the Pentagon’s “invitation” to cover
the proceedings, meant signing the 13-page Media Ground Rules
document:

Among other things, I agreed not to disclose any Protected
Information. The definition of Protected Information makes ample use of
the word includes and sets no upper limit on what Protected Information might be.

The geographical restraints also limit reportial opportunities:

For the most part, News Media Representatives are confined to a few
acres of Guantánamo, an area known as Camp Justice. Cut off from the
town and the detention camps, Camp Justice is carved up into a jigsaw of
designated zones by every conceivable type of wall: interlocking
traffic barriers, chest-high, made of orange plastic; chains hanging
between yellow stanchions; retractable fabric bands stretched
airport-style between flimsier black stanchions; chain-link fences
veiled in black tarps and topped with spools of concertina wire;
chain-link blocks wrapped in green tarps and filled with rubble; “no
photography” signs; “restricted area” signs; gates that swing on hinges;
gates that pop up from the ground.

And then there is the trial itself, with the imposition of a 40 second sound delay.

This first hand journalistic account provides a useful context for any constitutional analysis of a "public trial," as well as for the ongoing discussions of national security and constitutionalism.

In the wake of the 2012 election, members introduced several measures to facilitate quick and easy voting, to establish a period for early voting, to establish penalties for interfering with voting, and to make voting easier for overseas military:

H.R. 6591 and S. 3635, the Fair, Accurate, Secure, and Timely (FAST) Voting Act of 2012, which provides financial incentives to states to invest in practices and technologies that are designed to expedite voting at the polls and to simplify registration.

H.R. 6591, the SIMPLE Voting Act, which amends the Help America Vote Act of 2012 to require states to establish a minimum period of 15 days for early voting prior to the date of election for federal office and to ensure that no individual will be required to wait for longer than one hour to cast a ballot at a polling place in an election for federal office.

H.R. 6593, the Voter Fraud Prevention Act of 2012, which amends the National Voter Registration Act of 1993 to increase the penalties for intimidating, threatening, or coercing any person from engaging in voter registration or for procuring, submitting, or casting false voter registration applications or ballots, and to require election officials to transmit balloting materials to absent members of the military using the automated tagging and tracing services of the Postal Service.

H.R. 6594, the Military Ballot Integrity Act of 2012, which requires states that fail to transmit valid requested absentee ballots in an election for federal office to absent members of the military within a specified deadline to delay certifying the election results, and to provide a private right of action to enforce that requirement.

In addition, Rep. Steve Israel (D-NY) introduced H.J. Res. 121, proposing a constitutional amendment that would grant 29 extra votes in the electoral college to the winner of the national popular vote. Why 29? It's the average of the state with the most votes (California, at 55) and the states and D.C. with the least (3). According to HuffPo, it would encourage candidates to spend more time campaigning in states where they already have a lock, in order to ensure a popular vote victory to get the extra 29. Here's Rep. Israel's explanation. Section 1 reads:

In an election for President and Vice President, after the popular vote has been counted and electors have been appointed in each of the several States and the District constituting the seat of Government of the United States, each State and the District shall report the total number of popular votes cast for each of the candidates. The candidate receiving the largest percentage of the total popular vote as reported by the several States and the District shall receive 29 electoral votes in addition to those cast by the Electors chosen by the several States and the District. These votes shall not be considered votes cast by Electors and shall not affect the total number of votes necessary to constitute a majority of the whole number of Electors appointed.

As President Obama travels to Burma/Myanmar, becoming the first United States President to do so, most ConLawProfs will be recalling Crosby v. National Trade Council, decided by the Court in 2000. In an unanimous decision, the Court declared unconstitutional Massachusetts' 1996 procurement statute barring the state from doing business with almost any entity "doing business" with Burma. The Court held the state law was invalid under the Supremacy Clause because of a Congressional grant of authority to the President over any economic sanctions for Burma. The Massachusetts law thus undermined the diplomatic powers of the President.

The repressive history of Burma/Myanmar is essential to understanding the President's current diplomacy as well as Massachusetts' legislation in Crosby.

And essential to Americans seeking to understand Burma is the work of Emma Larkin. Widely regarded as one of the best books on Burma is Emma Larkin's Finding George Orwell in Burma. In the fascinating and well-written book published in 2006, Larkin - - - not her real name - - - writes of contemporary Burma and George Orwell's history in Burma, arguing convincingly that Orwell's novel 1984 was actually modeled on Burma and continued to be relevant. Earlier this year, Larkin wrote compellingly of the "Burma Spring" the popularity of former dissident Aung San Suu Kyi, both in an essay and in a lengthy review of Peter Popham's The Lady and the Peacock: The Life of Aung San Suu Kyi.

Obama argues that his visit is an "acknowledgment that the country is making progress toward reform." Read Emma Larkin's book, if you haven't already done so, to discover what this might mean.

Judge Reggie Walton (D.D.C.) on Friday granted plaintiffs a temporary injunction in Tyndale House Publishers, Inc. v. Sebelius stopping the Secretary from enforcing HHS regs under the Affordable Care Act that require health insurance plans to provide contraception coverage against a self-insured Christian publishing house. Judge Walton wrote that the plaintiffs were likely to succeed on their Religious Freedom Restoration Act claim and that they met other requirements for a temporary injunction. The ruling, should it stand, paves the way for self-insured plaintiff-corporations to challenge the contraception requirement under the RFRA.

Tyndale House Publishers is a small Christian publishing house that operates under a Christian "statement of belief and policy" outlining its religious beliefs. It doesn't offer its employees an outside health insurance plan; instead, it's self-insured and thus pays directly for its employees' health benefits. Mark Taylor, the other named plaintiff, is Tyndale's president and CEO.

The plaintiffs balked at HHS regs, enacted under the ACA, that, with certain exemptions for religious organizations, require employers to provide contraception as part of their employee health insurance plans. Importantly, they complained only about "drugs (e.g., Plan B, ella) or devices (e.g., intrauterine devices) that can cause the demise of an already conceived/fertilized human embryo." They filed suit, arguing that the regs violated the RFRA; the Free Exercise, Establishment, and Free Speech Clauses of the First Amendment; the Fifth Amendment Due Process Clause; and the Administrative Procedures Act.

The RFRA forbids the government from "substantially burden[ing] a person's exercise of religion even if the burden results from a rule of general applicability" unless the government can "demonstrate[] that application of the burden to the person (1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling government interest." 42 U.S.C. Sec. 2000bb-1(a), (b).

Judge Walton first concluded that the plaintiffs had standing. He wrote that Tyndale had standing under EEOC v. Townley Eng'g & Mfg. Co., 859 F.2d 610 (9th Cir. 1988), which held that a corporation has standing to assert the free exercise rights of its owners. Alternatively, Tyndale had third-party standing to assert its primary owner's free exercise rights.

As to the substance, Judge Walton wrote that Tyndale showed a "substantial burden," because

the contraceptive coverage mandate similarly places the plaintiffs in the untenable position of choosing either to violate their religious beliefs by providing coverage of the contraceptives at issue or to subject their business to the continual risk of the imposition of enormous penalties for its noncompliance.

Op. at 22. Judge Walton distinguished O'Brien v. HHS (E.D. Mo. 2012) (holding that the plaintiff did not suffer a substantial burden, because it provided employee health insurance through a group plan), because here the self-insured plaintiff, Tyndale, would pay directly for its employees' contraception (and not indirectly, through a group plan). Judge Walton explained:

The court dismissed the plaintiffs' RFRA claim [in O'Brien], holding that the plaintiffs had failed to show that the contraceptive coverage mandate substantially burdened their religious exercise. Describing the burden at issue as the "funds, which plaintiffs will contribute to a group health plan, [that] might, after a series of independent decisions by health care providers and patients covered by [the company's] plan, subsidize someone else's participation in an activity that is condemned by plaintiffs' religion," the court reasoned that the burden on the plaintiffs' religious exercise was simply too attenuated to qualify as "substantial." . . .

Here, the plaintiffs provide direct coverage to Tyndale employees through a self-insured plan in which "Tyndale acts as its own insurer." This difference in the manner in which coverage is provided is significant because while the company in O'Brien contributes to a health insurance plan which ultimately pays for the services used by the plan participants, Tyndale itself directly pays for the health care services used by its plan participants, thereby removing one of the "degrees" of separation that the court deemed relevant in O'Brien.

Op. at 23-24.

Judge Walton also concluded that the government's compelling interests in promoting public health and providing employed women with access to health care on par with employed men wouldn't be undermined by exempting Tyndale (and therefore weren't necessary here), because the government already exempts a number of other employers. He noted that Tyndale objected only to certain kinds of contraception--Plan B, ella, and intrauterine devices--and provided some other contraceptive coverage through its health plan, and that requiring Tyndale to provide the full range of contraceptives wasn't necessary to achieve public health and equality between female and male employees.